Is Sexual Abuse in Youth-Serving Organizations Covered under a Liability Waiver? This argument was presented by the defense in a recent case. Let's review and see if this is a plausible argument in youth-serving activities.
Sexual behaviors in young children can range from exploratory and normal to abusive and violent. Under federal law, the Title IX of the Education Amendments of 1972, schools have an obligation to protect children from inappropriate sexual behavior, including child-on-child sexual abuse. This obligation can be complicated when the allegation involves five-and-six-year-old children, for whom touching body parts and viewing private areas may be considered normal sexual behavior. The issue faced by school administrators and attorneys who litigate claims of child-on-child sexual abuse involving young children is whether touching falls under normative or problematic child sexual behavior.
Every attorney involved in criminal cases inevitably encounters a client who's accused of a sexual crime. Despite believability, it is one of the few crimes when the client is presumed guilty until proven innocent. Regardless of the attorney's role in the case it is imperative that attorneys understand the purpose of psychosexual evaluations (PSE), which client is a good candidate for the PSE, when they should be administered, and who provides such evaluations. This article is a very brief summary of what PSEs entail and has been specifically written for attorneys who practice in Oklahoma and Arkansas.
Drug-Facilitated Sexual Assault (DFSA) is the use of drugs and/or alcohol by a sexual predator to render a victim incapacitated and unable to fight back against a sexual assault. A side effect of many "Date Rape" or "Club Drugs" is also anterograde amnesia, the inability to recall what happened while drugged, increasing a predator's belief he will "get away with it." Those odds are shifting, but attorneys, Courts and potential victims are better served if they understand some of the drugs used and their impact on mind and body.
If you are the CEO or General Counsel of your company, you should be preparing for a new challenge. The gaining momentum of the #metoo movement means there will likely be an increase in sexual harassment complaints. Raghu and Suriani certainly think it's already happening (#METOOWHATNEXT: Strengthening workplace sexual harassment protection and accountability, nwlc.org, 2017.), and our clients are certainly calling us more often to investigate claims. To better prepare, here are some suggestions we urge you to consider.
Voir dire of experts as to credentials and experience needs to be viewed as only one aspect of the vetting process of forensic work product. Experts, as much as anyone else, are prone to conscious and unconscious sources of bias. This rather significant problem area in forensic reports is discussed by (Stuld and Simon, 2013) under the rubric of heuristic and cognitive biases. Heuristics addresses how people arrive at decisions or reach conclusions in complex family law, civil, or criminal matters. Errors in this area are of concern when experts focus or overly attend to only a part of the problem or afford overemphasis to certain factors and minimize the contribution of other factors. One can also see this problem in medicine. A patient may complain of pain in a particular body region whereas the provider focuses only another medical issue.
Defense counsel is frequently presented with the problem of a client protesting their innocence and accusers, perhaps multiple accusers, leveling allegations of sexual assault against the client. Of course, with defendants facing severe legal consequences, complaints need to be evaluated as to their reliability and validity.
Standard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.
Title IX, the law that prohibits discrimination on the basis of gender in public education programs, is also relevant in application of professional standards within the context of private school sexual abuse and harassment and their response to alleged incidents. Every school that accepts federal funding for any program or service it provides must adhere to Title IX. Most public schools, including charter schools and specialized education service commissions, accept federal assistance and, therefore, must comply with Title IX. Compliance requirements include, among other things, the development of policies prohibiting sexual harassment and assault, prompt and thorough investigation of complaints, training of staff, and the assignment of a person who oversees implementation of the law.
Under Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what "actual notice" is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.